Attorney-General for the State of Queensland v Valence [2020] QSC 397

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Valence [2020] QSC 397 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v KERRY PATRICK VALENCE (respondent) FILE NO/S: BS 2941 of 2009 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED EX TEMPORE ON: Orders made and reasons delivered on 19 October 2020 DELIVERED AT: Brisbane HEARING DATE: 19 October 2020 JUDGE: Bradley J ORDER: THE ORDER OF THE COURT IS THAT: 1. Pursuant to s 30(1) of the Dangerous Prisoner (Sexual Offender) Act 2003 (“the Act”), the decision made on 13 August 2009, that the respondent, Kerry Patrick Valence, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act, is affirmed 2. Pursuant to s 30(3)(a) of the Act, the respondent continue to be subject to the continuing detention order made on 16 November 2018. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – whether the respondent is a serious danger to the community in the absence of an order under Division 3 of the Act –whether the risk the respondent will commit a serious sexual offence is unacceptable –where the respondent has been unwilling to engage in high-intensity sexual offender therapy – where the respondent has been reluctant to take antilibidinal medication – where the consultant psychiatrist considers the respondent’s risk of -- 1 of 14 -- 2 sexual reoffending moderate to high – where the consultant psychiatrist considers that the respondent could not be safely managed in the community under a supervision order – where the risk of reoffending would slowly increase as oversight restrictions of a supervision order are relaxed – whether the court should order that the respondent be subject to a continuing detention order or whether he be released from custody subject to a supervision order – where supervision orders have the character of a compact between the prisoner and the community – where the respondent has demonstrated an unwillingness to submit fully to such a regime – where the respondent has completed the sentence imposed upon him for his actual offence but remains in custody – where the court does not understate the significance of decisions made under the Act – where the court considers the respondent’s risk of reoffending whilst subject to a supervision order to be unacceptable – where the adequate protection of the community requires the respondent continue to be subject to a counting detention order. Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 30(3)(a) Attorney-General for the State of Queensland v DBJ [2017] QSC 302, followed Attorney-General for the State of Queensland v Fardon [2011] QCA 155, cited COUNSEL: J Rolls for the applicant The respondent appeared on his own behalf SOLICITORS: GR Cooper, Crown Solicitor for the applicant The respondent appeared on his own behalf [1] This is a decision on a review of the orders made about the respondent under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act). Mr Valence, was made the subject of an order on 13 August 2009 when White J found that he was a serious danger to the community in the absence of a Division 3 order under the Act. Background -- 2 of 14 -- 3 [2] The history of reviews of that original decision is set out in the written submissions provided by the applicant. In short, the making of that order was reviewed each year between 2010 and 2016 and, on each occasion, it was affirmed. Over that period, Mr Valence was the subject of a continuing detention order. [3] At the review on 21 November 2016, the finding that he was an unacceptable risk was affirmed, but the continuing detention order was rescinded. Instead, Mr Valence was released under the requirements of the Act on a supervision order with a duration of 10 years. On 16 November 2018, it was found that Mr Valence had contravened his supervision order by having contact with two boys, the elder of which was 14 years of age, without the prior permission of a corrective services officer. It was also found that he had not made disclosures to the parents of the children and so breached two conditions of his supervision order. The supervision order was rescinded and, instead, a continuing detention order was made for an indefinite term for his care, control and treatment. Once a continuing detention order is made under the Act, the Attorney-General must apply for a review of that order from time to time. And when a review is sought, arrangements must be made for a respondent the subject of an order to be examined by two psychiatrists, unless the Court orders otherwise. That is what has occurred for today’s review hearing. [4] The question the subject of the review is whether the Court should affirm the decision that Mr Valence is a serious danger to the community in an absence of a division 3 order. The Court may only affirm that decision if it is satisfied by acceptable cogent evidence and to a high degree of probability that the evidence is of sufficient weight to affirm the decision. The question about the risk posed by a respondent has to be assessed at the date of the review hearing. Obviously, historical information is relevant to forming a view. But the most current information plainly deserves the most significant attention. The question is whether there is an unacceptable risk that the respondent will commit a serious sexual offence. A serious sexual offence is an offence of a sexual nature involving violence or against children. [5] As Bowskill J observed in Attorney-General for the State of Queensland v DBJ [2017] QSC 302 at [13]: -- 3 of 14 -- 4 “In considering whether a risk is unacceptable it is necessary to take into account, and balance, the nature of the risk and the degree of likelihood of it eventuating, with the seriousness of the consequences if the risk eventuates.” [6] In other words, there must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstances, is sufficient to make the risk unacceptable. Criminal history [7] Mr Valence was born in 1957 and so at the time of this review, is 63 years of age. Information has been provided to the Court about his antecedents and his criminal history. He committed relevant offences of a sexual nature involving children in New South Wales in about 1975 and 1980. [8] His Queensland criminal history includes convictions for the indecent treatment of children under 16 (with the aggravating factor of a child being under 12 years of age) between 1 January 1999 and 1 March 2000, and a second count of indecent treatment of a child under 16 (also under 12 years of age) between 1 January 1999 and 1 March 2000, and indecent treatment of a third child under 16 (with the aggravating factor of the child being under 12) between 1 December 2004 and 25 December 2004. Those convictions were recorded in the Rockhampton District Court on 10 March 2006. [9] At a number of prior occasions when Mr Valence has been before the Court on a review such as this, the psychiatric evidence provided to the Court has commended to him the undertaking of a high-intensity sexual offender program. Such programs are a type of group therapy and are described as high intensity both because of the length of each session and the frequency with which such sessions occur. [10] The recommendation of this form of treatment appears to be based on the view that when sexual offenders undertake group-based therapy of a high-intensive nature, the effects of that therapy on each individual are significantly better than may be obtained from equivalent individual therapy. The explanation for this may be that, in a group environment, the need to disclose conduct and to observe disclosures by others assists in the understanding of the nature of the offending. And with greater understanding -- 4 of 14 -- 5 comes a sounder approach to the formulation of plans to prevent any relapse in the future. [11] Since the detention of Mr Valence was last reviewed by this Court in 2019, he has been approached by staff at the correctional centre about his willingness to engage in the recommended group sexual offender program. The evidence before the Court is that such approaches were made on or about 9 January, 28 February and, most recently, on 19 June 2020. Mr Valence has indicated that he is not willing to engage in such programs. His preference is to continue with individual treatment with a psychologist. He has told the psychologist that he does not feel ready to engage in a high-intensity sexual offender program. [12] Another common recommendation in the psychiatric evidence was for Mr Valence to consider whether he would take antilibidinal medication. Mr Valence is reluctant to consider that concept because he has concerns about the effect of such medication on his bone density and the risk of osteoporosis. Evidence before the Court [13] For today’s review, two psychiatrists have prepared written reports. Dr Aboud [14] The first is Dr Andrew Aboud, a consultant psychiatrist. He interviewed Mr Valence on 22 May 2020 and provided a report dated 10 August 2020. Dr Aboud identified a number of risk assessment instruments which he considered useful in the sense that they have some validity in the assessment of the risk of recidivism for sexual offenders. On the static 99R assessment measure, Dr Aboud reported that Mr Valence returned a score of five. This places him in a group regarded as a moderate to high risk of reoffending. [15] On the Risk Matrix 2000/S, Dr Aboud had previously scored Mr Valence in the group regarded as a very high risk of reoffending. Dr Aboud did not alter his risk valuation in his latest report. Similarly, he did not alter his risk assessment on the Risk Matrix 2000/Violence Index. On that measure, Mr Valence has previously achieved a score placing him in the low-risk category of reoffending. On the psychopathy checklist, Mr Valence had achieved a score of 19 out of 40. This is below the cut-off point for -- 5 of 14 -- 6 a diagnosis of psychopathy and Dr Aboud considered that that assessment remained unchanged. [16] On the HCR20 measure, Mr Valence’s overall risk was considered to be moderate with a loading across some static risk factors and future dynamic risk factors. Dr Aboud considered that there could be some concerns arising from Mr Valence’s capacity to destabilise if he is faced with psychological stressors. On the risk for sexual violence protocol, Dr Aboud assessed Mr Valence as having positive scores for the following items: chronicity of sexual violence, problems resulting from child abuse, sexual deviance, problems with intimate relationships, problems with non- intimate relationships, problems with planning, problems with treatment and problems with supervision. [17] According to Dr Aboud, Mr Valence was considered to have partial possible scores for the following risk items: physical coercion in sexual violence, psychological coercion in sexual violence, extreme minimisation or denial of sexual violence, attitudes that support or condone sexual violence, problems with self-awareness, problems with stress or coping, psychopathic personality disorder, problems with substance abuse, problems with employment, and non-sexual criminality. [18] Dr Aboud’s view is that if Mr Valence were to reoffend, his offence would likely take the form of opportunistic sexual behaviour with a prepubescent or pubescent male. In Dr Aboud’s view, the victim may be known to Mr Valence or may be a stranger to him. Mr Valence may engage in grooming behaviours, having befriended the victim’s carer or parent. Physical or psychological coercion is possible, but the use of serious violence is unlikely. Offending may also take place against the background of stressors such as alcohol or substance abuse. However, in Dr Aboud’s opinion, Mr Valence might ultimately need no precipitant beyond victim access and opportunity. In Dr Aboud’s view, Mr Valence will employ significant cognitive distortions, including the belief that the victim is actively or passively willing to engage in sexual activity with him. Dr Aboud’s view is that Mr Valence will not regard the victim as seriously damaged by his behaviour and he may seek to externalise and minimise his responsibility. [19] Dr Aboud noted that Mr Valence has a functional libido and a longstanding paraphilic paedophilic drive. In this context, Dr Aboud expressed the opinion that Mr Valence’s -- 6 of 14 -- 7 overall risk would be currently moderate to high in respect of sexual reoffending. In reaching this conclusion, Dr Aboud took into account the chronicity of the respondent’s sexual offending, his sexual deviance, his problems with self-awareness, his lack of personal supports, his ongoing refusal to participate in a group treatment and his refusal to consider medication as part of an appropriate risk management. [20] Dr Aboud’s view is that Mr Valence could not be safely managed in the community under a supervision order. This opinion is based upon Dr Aboud’s consideration of what he described as Mr Valence’s capacity for duplicity, his engagement in high- risk association with children whilst previously under a supervision order, and his absence of engagement in group sexual offender therapy and his refusal to consider medication as a risk management measure. Dr Aboud’s view is that in order to reduce Mr Valence’s risk of sexual reoffending, Mr Valence would need to participate in and complete a high-intensity sexual offender program whilst in custody and at least consider the risk management benefits of medication. Dr Brown [21] The second report was by Dr Karen Brown, a forensic psychiatrist. Dr Brown interviewed Mr Valence on 30 July 2020. Her report is dated 5 October 2020. Dr Brown confirmed a diagnosis of paedophilic disorder, predominantly homosexual, and of a non-exclusive type. Dr Brown also expressed the view that Mr Valence demonstrates some features of antisocial personality disorder. Her analysis of his conduct, however, did not warrant a diagnosis of antisocial personality disorder. Dr Brown considered it more appropriate to view Mr Valence as having some antisocial personality traits. Like Dr Aboud, Dr Brown administered a number of risk assessment measures. On the static 99R measure, she also scored Mr Valence at five. This result is suggestive of a risk of sexual reoffending in the moderate to high or above average range. [22] On the PCL-R measure, which is a measure seeking to diagnose psychopathy, Mr Valence achieved a score of 17 out of 40. This is suggestive of some psychopathic traits, but is below the score required for a diagnosis of psychopathy to be made. On the risk for sexual violence protocol, Dr Brown assessed Mr Valence to have demonstrated 15 risk factors, which was not changed from her last assessment of him -- 7 of 14 -- 8 in 2019. Dr Brown described the risk factors – in particular, problems with treatment and supervision – as significant. [23] She considered these of some importance: Firstly, Mr Valence had failed to engage with a psychiatrist when he was in the community; Secondly, he was unable to adhere to his relapse prevention plan; Thirdly, he did not stay away from male children whilst under a supervision order in the community; Fourthly, he did not reveal the contact that he was having with children to his supervisors and, instead, lied about the extent of the contact; Fifthly, he did not speak to his psychologist about this contact; and, lastly, he refused to participate in group sex offender treatment programs or to consider antilibidinal medications. [24] On the whole, Dr Brown considered that Mr Valence had demonstrated a number of risk factors that identified his unmodified risk of sexual recidivism of at least moderate to high. Dr Brown noted that Mr Valence is now older, being about 63 years of age. She observed that he continues to have an active sex drive and intact sexual function. The contravention of the supervision order occurred when Mr Valance was 60 years of age. Dr Brown did not consider that Mr Valence’s increased age is a protective factor in respect of the risk of him committing a sexual offence. [25] Dr Brown noted in her report a lack of self-awareness to the extent that Mr Valence’s paedophilic disorder and associated risk factors were not fully understood by him. According to Dr Brown, there are cognitive distortions applied by Mr Valence in relation to childhood sexual boundaries and children’s consent to sexual activities. Dr Brown’s view is that Mr Valence has minimised his past offending, failed to accept responsibility for his actions, and externalised blame to others. [26] Dr Brown gave some short evidence in Court and was cross-examined by Mr Valence, including about this topic. Dr Brown confirmed that the summary of her discussion with Mr Valence about this matter is on the first full paragraph of page 27 of her report. Mr Valence put to Dr Brown that in addition to what is there recorded, he was asked a question about what consent means. It was also put to Dr Brown by Mr Valence that he told her that consent means “agree” and that Dr Brown responded, “No.” Dr Brown did not recall that precise interaction in the course of the interview, and could only indicate that the paragraph in her report is her summary of the discussion. I accept that it seems likely that, in the context of the discussion described -- 8 of 14 -- 9 there, a question about what is meant by consent could have arisen, and that Mr Valance may well have answered in the manner expressed in the questions he put to Dr Brown today. [27] Dr Brown, in her report, recorded a lack of awareness by Mr Valance of the impact of his avoidant personality traits. Dr Brown describes Mr Valence as preferring to ignore risks rather than deal with them. In this respect, she pointed to Mr Valence’s intention to isolate himself when released into the community. In Dr Brown’s view, this will not be sustainable and will only serve to increase the risk of reoffending rather than reduce it. Dr Brown considers that Mr Valence’s refusal to participate in high-intensity sexual offending programs demonstrates a rejection of appropriate relapse prevention planning. In Dr Brown’s view, if Mr Valence were to be released on a supervision order, the risk of reoffending would slowly increase as oversight restrictions are relaxed. I will return to that question a little later. [28] In Dr Brown’s view, Mr Valence’s past individualised treatment with a psychologist has failed to be sufficient, and she does recommend future therapy sessions in custody, but considers them to remain as a precursor to other treatment pathways that would include participation in a high-intensity sexual offender program. Dr Brown has also recommended that Mr Valence be referred to a psychiatrist to further explore the option of antilibidinal medications. In Dr Brown’s view, in her oral evidence today, such treatment by medication is not itself an end, but may play a role alongside psychological therapy. Consideration of the evidence [29] I have had regard to: the reports prepared by the two psychiatrists; what they reveal about a propensity on the part of Mr Valence to commit serious sexual offences in the future; and the extent to which they reveal a pattern of offending behaviour in the past; and the efforts that Mr Valence has made to address the cause or causes of his offending behaviour, including the extent of his participation in rehabilitation programs in the past and the extent of the positive effect of his past participation in such programs, his antecedents and criminal history; and the assessment of the risk that he will commit another serious sexual offence if released to the community. I am of the view that the order made in 2009 should be confirmed, because I am satisfied by what I regard as acceptable cogent evidence to a high degree of probability that -- 9 of 14 -- 10 there is evidence of sufficient weight to affirm that decision that Mr Valence is a serious danger to the community in the absence of a division 3 order. [30] This means it is necessary to consider whether the Court should order that Mr Valence be the subject of a continuing detention order or whether he be released from custody subject to a supervision order. In this particular question about what further order should be made, the statue directs the Court that the paramount consideration is the need to ensure adequate protection of the community. It is well settled now that what must be proved is that the community cannot be adequately protected by a supervision order, if a continuing detention order is to be made, and that when the Court is assessing whether a supervision order can reasonably and practicably manage the adequate protection of the community, it is necessary to assess the protection that such an order can provide against that risk. In doing so, the Court needs to consider whether it can reach a positive conclusion that a supervision order will provide adequate protection to the community. [31] As the Chief Justice observed in Attorney-General for the State of Queensland v Fardon [2011] QCA 155 at [29], supervision orders… “…have the character of a compact between the prisoner and the community. The prisoner is accorded a measure of personal freedom, but only provided he is willing to and does submit to a regime of tight control.” [32] In that context, where a person has demonstrated an unwillingness to submit fully to such a regime, there is room for doubt about the prospect of successfully managing that person in the community under a supervision order. Consideration of the respondent’s oral submissions [33] In short oral submissions today, Mr Valence put four key propositions. Firstly, he suggested that the Court should understand that the psychiatric reports had been based on police reports and that those reports may not be accurate. As an example, Mr Valence identified that he could not see where, on the evidence, a second boy was being groomed by him in addition to the 14 year old referred to in the material. [34] It is difficult to make an assessment of the effect of such influence in the present case. That is because the psychiatrists who have reported most recently on Mr Valence -- 10 of 14 -- 11 have seen him a number of times in the past. But I am satisfied from reading their reports that they have updated their assessments based on their most recent interactions with him and their review of all of the material, including that most recently found. Although I can accept that if Mr Valence was, in fact, grooming two young boys when he was under the supervision order in Toowoomba, that would be a very concerning development, it is nonetheless concerning that he was grooming one boy of the age of 14 years. My reading of Dr Brown’s report is not to the effect that she bases her conclusions, to any extent, upon evidence that Mr Valence was grooming two rather than one young boy at that time. [35] Mr Valence’s second submission is that he is still seeing a psychologist, Mr Smith, for individual treatment and, in that way, is being provided with guidance about how to deal with his present situation. I am sure that that submission is correct. There are two important things that I draw from it. The first is that Mr Valence is not opposed to the assistance that might be provided to him from continuing individual psychological treatment. The second is that a longstanding commitment to undertaking individual treatment has not altered the assessment of the psychiatrists that Mr Valence remains a moderate to high risk of committing a further sexual offence if he were to be released without any orders. [36] That second conclusion is, of course, important and concerning. The uncontradicted view of Dr Aboud and Dr Brown is that there are considerable advantages to a high- intensity group therapy program such as HISOP, and those advantages are not replicated to the same extent in individual therapy sessions. [37] Mr Valence’s third submission is that while in the community under a supervision order, he did not reoffend by committing any sexual offence involving a child. He accepts that he failed to tell the parents of the relevant child before he had contact with them. He explained that it is very difficult to do this. I accept that submission as being correct and quite sincerely put. The breach by Mr Valence of his supervision order involved not only his failure to disclose his previous offending to the parents of the child or children in question, but also his failure to advise the relevant correctional services authorities of his contact with any children or, in particular, with the 14 year old child. -- 11 of 14 -- 12 [38] The evidence appears to be that there was no disclosure of this contact with any relevant person, including any treating medical professional. So the breaching conduct was more comprehensive than Mr Valence’s submission addresses. And the failure to report the contact to the other authorities and treating psychologist is concerning because it is consistent, not with an embarrassment about disclosing prior sexual offending, but with continuing contact with one or more children and with an intention to keep the information about that contact away from those responsible in varying ways for his supervision and treatment. [39] Mr Valence’s final submission is that his continued detention in custody places him at risk of victimisation and of other detrimental conduct. This is undoubtedly the case and is a key concern of the Court in addressing an application such as this. As Bowskill J observed in her decision in DBJ, what constitutes an unacceptable risk is a matter for judicial determination and it requires a value judgment as to what risk should be accepted against what her Honour called “the serious alternative of the deprivation of a person’s liberty.”1 [40] The Court cannot understate the significance of decisions made under the Act in that respect. A person such as Mr Valence, who has completed the sentence imposed upon him for his actual offences, remains in custody and not at liberty, and so at risk of whatever vicissitudes can affect a person in that position. That is why the standard of evidence required for an application such as this has been set by the Parliament at a very high level, requiring cogent evidence and a high degree of probability that that evidence is of sufficient weight to justify the Court’s decision. [41] The Court also takes account of the fact that notwithstanding his continued detention, Mr Valence has all of the other ordinary personal rights, including the right to decline medical treatment and to decline to participate in associated therapies. He has exercised those rights whilst in custody and the Court does not seek to punish him in any respect for his conduct in doing so. Rather, the Court simply has to determine whether, in the present circumstance, with the benefit of the individualised psychological therapy Mr Valence has received, and in the absence of the benefit of any group-based, high-intensity therapy, the community can be adequately protected, 1 Attorney-General for the State of Queensland v DBJ [2017] QSC 302 at [12]. -- 12 of 14 -- 13 from the risk of him committing a sexual offence relevantly against a child, by a supervision order. [42] I mentioned before that the evidence of Dr Brown addressed this question. Dr Brown described what she called the latest risk factors as being significant. These were a failure by Mr Valence to engage with a psychiatrist whilst he was in the community, his inability to adhere to a relapse prevention plan, his failure to stay away from male children whilst under the supervision order in the community, his failure to reveal the contact with children to his supervisors, his lying about the extent of the conduct, and him not speaking to his psychologist about the conduct. [43] Dr Brown combined those matters with Mr Valence’s refusal to participate in a group offender treatment program or consider antilibidinal medications. In Dr Brown’s view, in the absence of completing a sexual offender treatment program, Mr Valence does not have a reliable or detailed relapse prevention plan. Her ultimate conclusion is that she was unable to recommend release on a supervision order because, in her view, it would not substantially or sufficiently reduce the risk of reoffending. [44] Of course, that is not a question for Dr Brown; it is a question for the Court. Only the Court can determine what is an acceptable or an unacceptable risk in the relevant sense. Conclusions [45] In my view, the likelihood of the occurrence of that risk is accurately assessed as being moderate to high. The magnitude of the harm that may result if that risk were to occur is, in my view, gravely concerning. The other relevant circumstances are that Mr Valence would be deprived of his liberty to which he would otherwise be entitled, and he will be placed at some risk that he might be victimised or adversely affected in some way whilst in jail. [46] Balancing those relevant circumstances with the likelihood of the risk, the nature of the risk and the magnitude of the harm that may result if it were to be realised, in my view, the risk is unacceptable. For that reason, the original order is to be confirmed. Also, the adequate protection of the community, in my view, requires an order that Mr Valence be subject to the continuing detention order. -- 13 of 14 -- 14 [47] In the circumstances, I propose to make an order in terms of the draft proposed on behalf of the applicant Attorney-General with some minor typographical changes -- 14 of 14 --